Business Recorder Editorial Feb 22, 2019

Pakistan’s sensible position

In a televised national address on February 19, 2019, Prime Minister Imran Khan responded to the war hysteria being whipped up by India in the wake of the Pulwama suicide attack that killed 44 personnel of the Central Reserve Police Force by offering both an olive branch and a stern warning to our eastern neighbour. The Prime Minister proffered a dialogue, including the issue of terrorism that India has been insisting for years since the Mumbai attacks in 2008 should be central to any revival of the stalled bilateral talks. At the same time, he warned India that any attack on Pakistan would certainly be retaliated. However, while the warning was clearly a response to the hostile atmosphere in India against Pakistan, it was not the main thrust of the Prime Minister’s message. That consisted of an invitation to India to return to the negotiating table to discuss terrorism, which is a regional problem and with which Pakistan is by now tragically familiar having been on its receiving end for years, as well as all other contentious issues. Prime Minister Imran Khan reiterated that the Naya (New) Pakistan ushered in by the Pakistan Tehreek-i-Insaaf (PTI) hoped that India would stop reducing Pakistan to its ‘whipping boy’ every time something untoward happened in India and that better sense would prevail in the interests of peace. The Prime Minister also extended an offer of cooperation to investigate the Pulwama incident if India was prepared to share any actionable intelligence to determine whether indeed Pakistani soil had been used to launch the attack. Foreign Minister Shah Mahmood Qureshi has weighed in with sympathy for the victims and their families while advising Indian Prime Minister Narendra Modi not to use the incident for political advantage in India’s upcoming elections. While the envoys of both countries have been recalled for consultations amidst the ratcheting up of tensions, reports from India speak of the harassment of Pakistani diplomats and their families in New Delhi and Kashmiris and Muslims throughout India. Bikaner has ordered Pakistani visitors to leave within 48 hours and trade between the two countries has virtually ground to a halt after India withdrew Most Favoured Nation status granted to Pakistan and increased duties on Pakistani products. Meanwhile India has responded to Prime Minister Imran Khan’s offer of dialogue with a summary rejection on the grounds that ‘proofs’ and ‘evidence’ were also given earlier, including the stalled for 10 years trial of the Mumbai attackers and the Pathankot base attack, but no credible, visible action was taken. It has also criticised Prime Minister Imran Khan for neither condemning the Pulwama attack nor condoling with its victims’ families.

Pakistan has not been deterred by the negative response of New Delhi and has approached the United Nations, scores of countries’ envoys, and even reportedly sent a special message from Prime Minister Imran Khan to Modi via Saudi Crown Prince Mohammad bin Salman who visited India straight after his trip to Pakistan. Of these, the United Nations Secretary General Antonio Guterres in response to Foreign Minister Shah Mahmood Qureshi’s missive and our Ambassador Maleeha Lodhi’s discussions, offered his good offices if both countries agree. While the Indian narrative surrounding the Pulwama attack may have elements of political and electoral considerations driving it, it is eminently sensible of Pakistan not to succumb to any similar knee-jerk reaction and consciously or inadvertently stoke the embers of confrontation. Wisdom dictates recognition by India that war between the two South Asian nuclear-armed neighbours is unthinkable and only dialogue and mutual cooperation can help scotch the many-headed hydra of regional terrorism.

Business Recorder Editorial Feb 21, 2019

Memogate damp squib

After eight years of inconclusive meanderings, the Supreme Court (SC) finally delivered the coup de grace to the infamous Memogate case on February 14, 2019. It may be recalled that former ambassador to the US Husain Haqqani was accused of allegedly sending a memo to then US military chief Admiral Mike Mullen through a Pakistan-origin businessman of allegedly dubious repute, purportedly asking for US help for the civilian elected government of the Pakistan People’s Party (PPP) against any attempt by the Pakistan military to oust it in the wake of the killing of Osama bin Laden on May 2, 2011 in a compound in Abbottabad. When the alleged incident was brought into the light of day by Mansoor Ijaz, a furore broke out in Pakistan with cries of ‘treason’ and similar sentiments rending the air. Before even the facts had been examined and verified, the then Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry jumped the gun and took suo motu notice of the matter. Subsequently then opposition leader Nawaz Sharif and others also moved petitions in the SC against the alleged memo, a step Nawaz Sharif later admitted was a mistake. Ambassador Haqqani was summoned home and after a meeting with then president Asif Ali Zardari and the military top brass, especially then COAS General Ashfaq Kayani and ISI chief Lieutenant-General Ahmed Shuja Pasha, Haqqani resigned. He departed for the US after committing to the SC that he would return if and when required. Meantime the SC set up a judicial commission to probe the affair. The commission issued its report that concluded the purported memo did exist (Mullen belatedly also had admitted its existence but said he did not take it seriously) and that Haqqani was its mover and author. The commission’s report’s credibility was weakened though by the fact that whereas it had allowed Mansoor Ijaz to depose before it via video link from abroad because he said he was not safe in Pakistan, it rejected a similar request from Haqqani. The report therefore suffered from the one-sided frailty that it had not given Haqqani an opportunity of a hearing. After the report was submitted, the efforts to bring Haqqani back to Pakistan, presumably to stand trial, began. However, efforts through Interpol in this direction failed. So too did belated efforts (or afterthoughts) to have Haqqani extradited from the US through Interpol on embezzlement charges. In both instances, Interpol rejected the requests to issue an international arrest warrant for Haqqani. Although Pakistan does not have an extradition treaty with the US (which of course never stood in the way of rulers like Musharraf handing over citizens to Washington during the war on terror), it was Interpol’s jurisdictional issues that prevented the result desired by the authorities.

When a SC bench headed by CJP Asif Saeed Khosa finally took up the case, the CJP wondered why so much of the court’s precious time had been wasted on a matter in which neither the petitioners appeared nor any adjournments were sought. When his attention was drawn to the possibility of the Federal Investigation Agency and National Accountability Bureau following up the FIR registered against Haqqani, the CJP cut to the heart of the issue by asking whether the state of Pakistan and its military were so weak that they could be shaken by a mere memo? The fact is that the memo’s being traceable back to Haqqani was never irrefutably established, the judicial commission did not give him the opportunity of a hearing, and the case lay in cold storage because of lack of being pressed by the petitioners. Post facto embezzlement charges against Haqqani seemed to be transparent attempts to persuade Interpol to act in the matter. It goes to the credit of the SC under the new CJP that it has finally dismissed the whole so-called Memogate case as a damp squib. It seems unlikely after this result that the present government would be interested in pursuing a matter that appears dead in the water, and even it so chose, would be unlikely to generate much traction. The lesson to be learnt from the affair is the need for the superior judiciary to return to its time-honoured judicial restraint, which the present CJP seems on the way to implementing, and for state institutions, media and other actors not to be taken in by what appears with hindsight to have been an attempt to get at then president Zardari and the PPP government by throwing mud at its ambassador in Washington.

Business Recorder Editorial Feb 18, 2019

Hazara province bill

Two weeks after moving a bill to carve out two new provinces out of Punjab, the opposition Pakistan Muslim League-Nawaz (PML-N) has now submitted another bill to create a Hazara province out of Khyber Pakhtunkhwa (KP). As justification for this latest move, the PML-N cites the resolution passed by the KP Assembly on March 25, 2014 for creation of a Hazara province. It says the resolution was supported by both sides of the Assembly’s aisle. The proposal therefore, according to the PML-N, seeks to meet the “very genuine demand” of the people of Hazara Division to create a province comprising the areas of the division. The bill seeks amendments to three Articles of the Constitution, Articles 51 (formation of the National Assembly), 59 (related to the structure of the Senate) and 106 (constitution of the provincial Assemblies). The amendment sought in Article 51 wants the table of provinces therein to include Hazara province with 11 general seats and three women’s reserved seats. Clause 3A of Article 51 is to be replaced with: “Notwithstanding anything contained in Clause 3 or any other law for the time being in force, the women members elected from KP and Punjab shall continue till dissolution of the National Assembly and thereafter this clause shall stand omitted.” On Article 59, the bill seeks a revision of the total strength of the Senate from the present 96 to 142. The bill argues: “Punjab and Khyber Pakhtunkhwa prior to the creation of the new Provinces of Hazara, Bahawalpur and Janubi (south) Punjab shall complete their respective terms of office and thereafter this clause shall be omitted.” Here the movers of the bill have joined their latest new province demand with their earlier one for two new provinces in Punjab. As far as Article 106 is concerned, the bill suggests that its table too include Hazara and allot the new province 29 general seats, six women’s seats and one minority seat, making a total of 36 seats in the new Hazara provincial Assembly.

What lies behind this cascading series of PML-N demands for new provinces, and that too in the two provinces currently ruled by the Pakistan Tehreek-i-Insaaf (PTI)? After all, if the Hazara province question is examined, the PML-N was in power when the KP Assembly resolution regarding this issue was passed. In fact, during their five-year tenure in power from 2013 to 2018, the PML-N never paid any attention to the issue of creation of new provinces anywhere and consigned the Hazara province demand to cold storage. Even now, the target of the PML-N being the two provinces ruled by the PTI arouses suspicions that there is more to the move than meets the eye at first glance. Why, for example, does the PML-N ‘drive’ for new provinces ignore the demands for an Urdu-speaking new province to be carved out of Sindh or a Pashtun province out of Balochistan? The underlying motivation of the PML-N, now in opposition and under the cosh from the ruling PTI, National Accountability Bureau (NAB) and the judiciary for alleged corruption, appears to be to muddy the waters for the PTI and embarrass it for not fulfilling its campaign pledge to create a new province in southern Punjab and ignoring since 2014 the demand passed by the KP Assembly while PTI was in power in the province. Is it credible that the PML-N has suddenly suffered pangs of conscience and a bleeding heart for the citizens of southern Punjab and Hazara after blithely ignoring these issues while in power in Punjab and the Centre? The suspicion therefore that this is not much more than a plan by the PML-N to create difficulties for the PTI is hard to resist. New provinces cannot by any stretch of the imagination be created out of a motivation rooted in political rivalry. Merely posing the question of why PML-N is ignoring the new province demands in Sindh and Balochistan not only deepens this suspicion, it fails to address the elephant in the room: the necessary lack of consensus on the creation of new provinces per se.

Business Recorder Editorial Feb 14, 2019

Suo motu powers issue

In furtherance of the ideas expressed in his first speech on January 17, 2019, in which Chief Justice of Pakistan (CJP) Asif Saeed Khosa had indicated the need to determine the scope and parameters of the exercise of the original jurisdiction of the Supreme Court (SC) under Article 184 (3) of the Constitution, a full court was summoned by him for this purpose. However, whereas the CJP had spoken about using the SC’s jurisdiction under Article 184 (3) very sparingly in respect only of issues of national importance where either there is no adequate or efficacious remedy available or has been rendered ineffective or incapacitated, his brother judges seem to have failed to reach a consensus on the issue. The minutes of the February 6 full court meeting seem to have fudged the issue by saying that after a threadbare discussion, the court’s jurisdiction under Article184 (3) would be exercised “in accordance with the Constitution”. This neither explains anything nor resolves the contentious palette of opinions regarding the issue. In fact it reflects the failure of the full court to agree on how to reverse the surfeit of judicial activism that has incrementally overturned our jurisprudence of long standing based on judicial restraint since former CJP Iftikhar Mohammad Chaudhry’s court. What CJP Asif Saeed Khosa desired was for the full court to consider an amendment in Order XXV of the SC Rules regarding the scope of the SC’s exercise of its jurisdiction under Article 184 (3), in accordance with the suggestion of the Supreme Court Bar Association (SCBA). Since consensus seemed to have been lacking, the minutes appear to have papered over the differing points of view, leaving no one the wiser about what the future may hold in this regard. Arguably, since the issue remains unresolved, future CJPs would be free to adopt varying interpretations of the SC’s jurisdiction. The SCBA had also pressed for the right of appeal against verdicts delivered by the SC using its original jurisdiction under Article 184 (3) as interpreted by the court. As matters stand at present, no right of appeal is available against a verdict of the SC after taking suo motu notice of any matter.

As things have played out over time, the SC’s suo motu powers have been used to intervene in politics using Article 62 (1), which critics hold is not the SC’s domain, even in the face of the executive’s failure to deliver good governance. The SC’s quo warranto jurisdiction has been employed to oust a number political leaders, judges and bureaucrats, but there exists no check on the court’s authority. Now since it has emerged that the apex court judges failed to find a consensus on this by now contentious issue, perhaps the time has come for parliament to take it up with a view to restoring the trichotomy of powers inherent in our constitutional framework. Although this would appear the wisest course under the obtaining circumstances, there is scepticism aplenty that given the present state of dysfunctionality of parliament because of the tensions between the treasury and opposition, it may turn out to represent little else except the triumph of hope over reality. It goes without saying that legislation to define or redefine the original jurisdiction of the SC under Article 184 (3) is in the vital interests of parliament and the executive, the two pillars of the state that have been most affected by the veering of our superior judiciary towards an expanded jurisdiction on the basis of constitutionally guaranteed fundamental rights, particularly the SC. It is a test of the wisdom of our political class therefore whether they can rise above their relatively mundane day-to-day differences rooted in political rivalry and legislate a course correction.

Business Recorder Editorial Feb 12, 2019

Middle class constituency

Speaking at a book launch in Islamabad on February 8, 2019, Federal Minister for Information Fawad Chaudhry rued the fact that the Pakistan Tehreek-i-Insaaf (PTI) government had not been able to provide immediate economic relief to its middle class constituency due to inheriting an economy in dire straits. The minister trotted out the government’s usual rhetoric about economic mismanagement and poor governance by the two previous governments of the Pakistan People’s Party (PPP) (2008-13) and Pakistan Muslim League-Nawaz (PML-N) (2013-18) that has led to this state of affairs. While the argument about inheriting an economy in the doldrums may have some weight, its overuse by the PTI government to explain away what appears to be its fumbling in formulating policies to tackle this situation is wearing thin by now. The fact is that the PTI’s slogans of tabdeeli (change) and Naya (New) Pakistan had raised expectations to such heights that it is proving difficult to satisfy those aspirations. Adding to the confusion is the apparent lack of preparation of the PTI team regarding the problems of the economy. As is well known, learning on the job can be a costly affair. The election campaign promises of the PTI such as creating 10 million jobs and building five million houses, obviously aimed at its core middle class constituency, are proving difficult to fulfil given the economic and financial constraints. Fawad Chaudhry gushed that it was the middle class’ role in the 2014 dharna (sit-in) in Islamabad and the momentum from then on to the 2018 elections that produced the ‘miracle’ of Imran Khan’s ascent to power. According to Chaudhry, it was Imran Khan’s message of equality before the law, elimination of corruption and improving governance that had given hope to people. No other party, Chaudhry argued, can bring about change in the country. The government has been changed through the 2018 elections, he continued, and now the challenge is to change the system to make it poor people-friendly, but this would require sustained efforts. Chaudhry criticised the judiciary from which he said only the rich could get relief and the bureaucracy for their share of responsibility for the bad state of the economy.

While Fawad Chaudhry’s rhetoric is obviously aimed at mollifying the middle class that is still awaiting some fruits of the PTI’s coming to power, it has to be said that so far the PTI government has proved stronger in rhetoric than in performance. The on-again, off-again minuet regarding going to the IMF has contributed to economic uncertainty and loss of business confidence. Investment, domestic and foreign, is still relatively shy, a fact that nullifies the promise of 10 million jobs. The real estate sector is suffering from policy changes relating to documentation for tax purposes that has seen tax non-filers virtually cut out of property dealing and thereby dealt a blow to the industry that has relegated the five million houses to so far a distant dream. Even in the straitened economic circumstances obtaining, surely the government could invest in reforming education and healthcare (in Punjab at least) without needing vast sums of money. Equally important and again not requiring vast expenditure is the improvement of law and order, especially through reform of the police and other law enforcement agencies. If the political will is present, this would directly benefit the middle class and the poor. Although all the above reads like the disappointment many are expressing in the seeming lack of a roadmap with the government, there are chinks of light here and there. One such is the agreement between the PTI government and the Balochistan National Party-Mengal regarding efforts to recover and return missing persons to their families. A trickle of such returns has indeed started in Balochistan and it is hoped this heinous and patently illegal practice of disappearance will be consigned to the dustbin of history even while the recovery and return of the missing persons is being pursued seriously and earnestly.